IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50407

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JOSE ELUID LUGO-LOPEZ, also known as Cochi Loco; EMILIO 

VILLALOBOS-ALCALA, also known as La Tripa, 

 Defendants - Appellants

Appeals from the United States District Court

for the Western District of Texas

Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit 

Judges.

PER CURIAM:

Jose Eluid Lugo-Lopez (“Lugo”) and Emilio Villalobos-Alcala 

(“Villalobos”) (collectively, the “Appellants”) were convicted in the United 

States District Court for the Western District of Texas for gun and drug 

smuggling offenses. The district court sentenced Appellants to, inter alia, life 

imprisonment. Appellants appealed, challenging the sufficiency of the 

evidence for conviction, the district court’s admission of trial evidence, and the 

court’s imposition of Appellants’ life sentences. We AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

August 17, 2016

Lyle W. Cayce

Clerk
No. 15-50407

2

I.

Appellants were charged in a Third Superseding Indictment with: (1) 

conspiracy to possess with intent to distribute over 1000 kilograms of 

marijuana (Count 1); (2) conspiracy to import into the United States from 

Mexico over 1000 kilograms of marijuana (Count 2); (3) conspiracy to possess 

firearms in furtherance of a drug trafficking crime (Count 3); and (4) two 

counts of aiding and abetting the exportation from the United States of defense 

articles as defined under Category I of the United States Munitions List 

(Counts 4 and 5).1 Following a five-day jury trial, a jury found Appellants 

guilty on all counts. The district court sentenced each Appellant to (1) life 

imprisonment on Counts 1 and 2; (2) 240 months’ imprisonment on Count 3; 

and (3) 120 months’ imprisonment on Counts 4 and 5. Appellants timely 

appealed.

II.

Appellants first challenge the sufficiency of the evidence with respect to 

the underlying conspiracy and aiding and abetting charges. We review a 

sufficiency challenge de novo if properly preserved through a motion for 

judgment of acquittal at trial. See United States v. McDowell, 498 F.3d 308, 

312 (5th Cir. 2007). “We will affirm the jury’s verdict if a reasonable trier of 

fact could conclude from the evidence that the elements of the offense were 

established beyond a reasonable doubt, viewing the evidence in the light most 

favorable to the verdict and drawing all reasonable inferences from the 

evidence to support the verdict.” United States v. Floyd, 343 F.3d 363, 370 (5th 

 

1 Appellants’ five counts relate to the following statutory references: (1) 21 U.S.C. §§ 

841(a)(1), 841(b)(1)(A), 846 (Count 1); (2) 21 U.S.C. §§ 952(a), 960(a)(1), 960(b)(1), and 963 

(Count 2); (3) 21 U.S.C. § 924(o) (Count 3); and (4) 22 U.S.C. §§ 2778(b)(2), 2778(c), 22 C.F.R. 

Part 121, 123, 127, and 18 U.S.C. §§ 554(a), and 2 (Counts 4 and 5).
No. 15-50407

3

Cir. 2003). “The evidence need not exclude every reasonable hypothesis of 

innocence or be wholly inconsistent with every conclusion except that of guilt, 

and the jury is free to choose among reasonable constructions of the evidence.” 

United States v. Salazar, 66 F.3d 723, 728 (5th Cir. 1995), abrogated in part by 

United States v. Sorrells, 145 F.3d 744 (5th Cir. 1998). We neither review the 

weight of the evidence or the credibility of the witnesses. Floyd, 343 F.3d at 

370. 

Appellants preserved a sufficiency of the evidence claim in this case after 

moving for judgment of acquittal at the close of evidence; the court denied the 

motion. Accordingly, this preserved error is reviewed de novo. See United 

States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999).

A.

Lugo argues that evidence presented at trial was insufficient to support 

a conviction under Count 4 for aiding and abetting the exportation of firearms 

and ammunition from the United States. Specifically, Lugo contends that 

there is no evidence linking him with the August 7, 2012, seizure of firearms 

and ammunition from a Ford F-250 truck driven by co-conspirator Sarai 

Longoria-Rivas (“Longoria”), and seized by Border Patrol as Longoria was 

driving toward Eagle Pass, Texas. Relevant here, an offense under 18 U.S.C. 

§ 554(a) for aiding and abetting the exportation of munitions from the United 

States (Count 4) requires proof that “the defendant knew he was dealing with 

ammunition that was intended for export and that the exportation was illegal.” 

United States v. Cardenas, 810 F.3d 373, 374 (5th Cir. 2016) (per curiam). To 

establish that Lugo aided and abetted a violation of § 554(a), the Government 

must show that “the elements of the substantive offense occurred and that the 

defendant associated with the criminal venture, purposefully participated in 

the criminal activity, and sought by his actions to help it succeed.” United 
No. 15-50407

4

States v. Mitchell, 792 F.3d 581, 583 (5th Cir. 2015) (per curiam). Lugo 

contends that the Government failed to establish that he aided and abetted the 

attempted smuggling. His argument bears little weight. 

At trial, witnesses testified to being given direct instructions from Lugo

to make purchases in the aid of smuggling munitions and to transport weapons 

from the United States to Mexico; others were threatened with violence 

because of their involvement with the smuggling. Indeed, one of the 

Government’s strongest witnesses, Julio Salazar (“Salazar”), testified at trial 

to Lugo’s direct involvement in smuggling guns. See United States v. Valdez, 

453 F.3d 252, 257 (5th Cir. 2006) (“[A] defendant may be convicted on the 

uncorroborated testimony of a coconspirator who has accepted a plea bargain 

unless the coconspirator’s testimony is incredible.”). Salazar testified that he 

reported back to Lugo and that he was individually responsible for driving a 

Ford F-250 truck from San Antonio, Texas, to Piedras Negras, Mexico, with 

forty to fifty assault rifles and fifteen to twenty handguns stored in the truck. 

Salazar had installed an external gas tank to the exterior of the Ford truck and 

returned it to Lugo prior to his trip.

Salazar also testified that Lugo orchestrated a separate smuggling: the 

loading of firearms into a vehicle that was seized from a woman in the summer 

of 2012; Lugo instructed Salazar to purchase an external gas tank for that Ford 

F-250 truck. Salazar testified that following the summer 2012 seizure of that 

Ford F-250 truck, Lugo informed Salazar that the load taken by police 

belonged to him. Salazar’s testimony was corroborated by Longoria, who 

testified about the same agreement that involved Longoria picking up and 

dropping off a Ford F-250 truck with an external gas tank attached to the bed 

of the truck in August of 2012. See Valdez, 453 F.3d at 259 (concluding that a 

rational jury could find ample evidence to support a conspiracy charge where
No. 15-50407

5

each co-conspirator’s testimony tended to corroborate the testimony of the 

other co-conspirators).

Finally, telephone call logs presented at trial also linked Lugo to the 

smuggling of firearms. Numerous phone calls were made between Longoria 

and Lugo leading up to the date of Longoria’s arrest and Longoria testified to 

having been given Lugo’s telephone number while she was smuggling firearms. 

See id. Here, each witness’s testimony strengthened the link to Lugo.

B.

Villalobos argues that the Government presented insufficient evidence 

of his alleged participation in the conspiracies charged in Counts 1–3: 

conspiracy to possess with intent to distribute marijuana, conspiracy to import 

marijuana, and conspiracy to possess firearms in furtherance of a drug 

trafficking crime. To establish that a particular defendant possessed with 

intent to distribute, or conspired to import, more than 1000 kilograms of 

marijuana under Counts 1 and 2, the Government was required to prove the 

existence of a conspiracy, Villalobos’s involvement in the conspiracy, and the 

requisite drug quantity (here, more than 1000 kilograms) involved in the 

conspiracy beyond a reasonable doubt. See United States v. Turner, 319 F.3d 

716, 722–23 (5th Cir. 2003). The amount that is directly attributable to 

Villalobos is a matter that must be proven by a preponderance of the evidence 

at sentencing. Id. at 723.

“[A]n in-court identification is not necessary for conviction.” United 

States v. Castaneda, 548 F. App’x 140, 143 (5th Cir. 2013). We have also held 

that “[a]lthough ‘an uncertain in-court identification will not support a 

conviction where that identification is the only evidence offered on the issue of 

identity,’ such ‘tentative nature of . . . identification is not fatal,’ if there is 

other sufficient evidence of identity.” United States v. Guerrero, 169 F.3d 933, 
No. 15-50407

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941 (5th Cir. 1999) (emphasis omitted). However, where the “sole witness is 

unsure and there are no other connecting or corroborating facts or 

circumstances” the jury cannot find guilt beyond a reasonable doubt. United 

States v. Johnson, 427 F.2d 957, 961 (5th Cir. 1970), superseded by rule on 

other grounds in United States v. Nelson, 242 F. App’x 164 (5th Cir. 2007).

Villalobos highlights hesitancy from a handful of witnesses in identifying

him in court as “La Tripa,” the nickname for the individual who many of the 

witnesses had testified had been involved in the conspiracies. 

Notwithstanding Villalobos’s attempt to hide the court’s eyes from the 

numerous other in-court identifications of him, several witnesses positively 

identified Villalobos as “La Tripa.” Among them were (1) Salazar, who 

interacted with Villalobos on several occasions after having worked with Lugo 

to smuggle marijuana and firearms between the United States and Mexico; (2) 

Claudia Reyna, who testified to being physically and mentally abused by

Villalobos as a result of her involvement in the drug smuggling; and (3) Julio 

Aguirre, who met Villalobos on multiple occasions when traveling to Mexico 

after crossing the Texas border with Leroy Milligan, one of Villalobos’s main

co-conspirators. See United States v. Bermea, 30 F.3d 1539, 1554 (5th Cir. 

1994) (concluding that the evidentiary weight of testimony or in-court 

identifications of defendants was adequate to find sufficient evidence of

participation in conspiracy).

Villalobos draws the court’s attention to the inability of three witnesses

to initially identify him as “La Tripa” when first asked whether they saw “La 

Tripa” in court; this is not fatal. He points to (1) Juan Rivas, who allegedly 

had an agreement to smuggle guns and drugs on behalf of Villalobos and Lugo; 

(2) co-conspirator Milligan; and (3) Martha Perez-Lopez, Julio Salazar’s 

mother and the individual who had previously rented her home in Mexico to 
No. 15-50407

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Villalobos. Both Rivas and Perez-Lopez, though with some initial uncertainty, 

identified Villalobos in court after having previously identified him as “La 

Tripa” during a photo lineup occurring closer in time to the conspiracy. See 

Simmons v. United States, 390 U.S. 377, 384 (1968) (“[C]onvictions based on 

eyewitness identification at trial following a pretrial identification by 

photograph will be set aside on that ground only if the photographic 

identification procedure was so impermissibly suggestive as to give rise to a 

very substantial likelihood of irreparable misidentification.”); United States v. 

Keller, 512 F.2d 182, 184 (3d Cir. 1975) (reversing a conviction based on a 

witness’s uncertain identification of the defendant where the witness solely 

stated that the defendant looked “most like” the individual in question). 

Villalobos presented no evidence of an impermissibly suggestive pre-trial photo 

lineup and the witnesses ultimately provided clear testimony that Villalobos 

did in fact look like “La Tripa,” but with slight physical appearance differences 

likely explained by the passage of time such as a change in facial hair. Rivas 

and Milligan also identified photos found on Villalobos’s wife’s phone of him as 

“La Tripa.” See Castaneda, 548 F. App’x at 143 (“In-court identification is only 

one piece of all the evidence presented to the jury. Other circumstantial 

evidence presented could have led a reasonable jury to find [defendant] guilty 

of the charged crimes.”). We give no weight to Villalobos’s argument that the 

Government presented insufficient evidence to link him to the charged 

conspiracies.

Villalobos’s second concern—that the prosecutor’s leading questions 

tainted the witnesses’ identifications of him—is similarly without merit. While 

testifying, Milligan and Perez-Lopez noted that Villalobos’s appearance was 

slightly different from the “La Tripa” that they had previously interacted with; 

nonetheless, each positively identified him based on their prior interactions. 
No. 15-50407

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But see United States v. Cooper, 606 F.2d 96, 98 (5th Cir. 1979) (“The control 

of leading questions is within the discretion of the trial court. That discretion 

may be abused, of course, for example where the questions asked have the 

effect of supplying a witness with a ‘false memory.’”) (citations omitted). After

having carefully reviewed the record, it is clear that other witnesses 

sufficiently identified Villalobos as “La Tripa” such that these identifications

are independently reliable. Milligan and Perez-Lopez’s testimony were 

unnecessary for a jury to have found guilt. See Chapman v. California, 386 

U.S. 18, 24 (1967) (affirming a conviction where it was “beyond a reasonable 

doubt that the error complained of did not contribute to the verdict obtained”).

Finally, Villalobos argues that the Government failed to establish his 

responsibility for greater than 1000 kilograms of marijuana. This too is of no 

moment. As we have previously held, “the jury should determine the existence 

vel non of the conspiracy as well as any facts about the conspiracy that will 

increase the possible penalty for the crime of conviction beyond the default 

statutory maximum; and the judge should determine, at sentencing, the 

particulars regarding the involvement of each participant in the conspiracy.” 

Turner, 319 F.3d at 722. The amount of marijuana that Villalobos is directly 

responsible for is not an issue for trial, but sentencing.

III.

Villalobos next argues that the court erred in allowing evidence to be 

introduced that he is allegedly a member of the Zeta cartel and that 

introduction of this evidence violates Rules 403 and 404 of the Federal Rules 

of Evidence. “Generally, we review a trial court’s decision to admit evidence 

for abuse of discretion.” See United States v. Akpan, 407 F.3d 360, 373 (5th 

Cir. 2005). Where a defendant did not object to the evidence on the basis 

presented on appeal, we review for plain error. United States v. Williams, 620 
No. 15-50407

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F.3d 483, 488–89 (5th Cir. 2010). To prevail under plain error review, an 

appellant must “show a forfeited error that is clear or obvious and that affects 

his substantial rights.” United States v. Andaverde-Tinoco, 741 F.3d 509, 516 

(5th Cir. 2013). If such error exists, we have discretion to correct the error, 

“but only if it seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” Id.

Under Rule 404(b), evidence of a person’s crimes, wrongs, or other acts 

is “not admissible to prove the character of a person in order to show action in 

conformity therewith.” Williams, 620 F.3d at 489. “Intrinsic evidence, on the 

other hand, is generally admissible.” United States v. Sumlin, 489 F.3d 683, 

689 (5th Cir. 2007). “Evidence is intrinsic when it is ‘inextricably intertwined’ 

with or ‘a necessary preliminary to the crime charged,’ or when it is ‘part of a 

single criminal episode’ with the charged act.” United States v. MartinezHerrera, 539 F. App’x 598, 601 (5th Cir. 2013) (quoting Sumlin, 489 F.3d at 

689). Notwithstanding, “[e]vidence may be excluded if its probative value is 

substantially outweighed by . . . unfair prejudice.” Fed. R. Evid. 403. 

The Government’s evidence established that Villalobos’s membership in 

the Zeta cartel was relevant to his culpability for particular criminal acts 

intrinsic to the conspiracy and not indicative of Villalobos’s character. See 

Martinez-Herrera, 539 F. App’x at 601 (“T]he drug conspiracy charge permitted 

proof of acts of the conspirators occurring during the life of the conspiracy.”); 

see also United States v. Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991) (“Evidence 

of an uncharged offense arising out of the same transactions as the offenses 

charged in the indictment is not extrinsic evidence within the meaning of Rule 

404(b), and is therefore not barred by the rule.”). In this instance, “[e]vidence 

of the structure of the conspiracy, including . . . question[s] about and 

references to the cartel[] for which [defendant] worked, [is] . . . intrinsic proof 
No. 15-50407

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of the conspiracy.” Martinez-Herrera, 539 F. App’x at 601. These acts and 

related references to the Zeta cartel included testimony that Villalobos directed 

action of co-conspirators to further the purpose of the Zeta cartel.

Villalobos’s alleged cartel involvement was also probative of his 

association with the other members of the conspiracy, whom he attempts to 

dissociate himself from. See United States v. Chavful, 100 F. App’x 226, 231 

(5th Cir. 2004) (upholding a conviction involving gang affiliation testimony 

where the probative value of the testimony outweighs any unfair prejudice). 

While testimony presented at trial about the violence and lawlessness of the 

Zeta cartel is prejudicial to Villalobos, it is not unfairly prejudicial. Id.

Furthermore, any undue prejudice established from introduction of Villalobos’s 

alleged cartel involvement was alleviated by mitigating trial testimony from 

witnesses: “Prosecutor: “[W]hether or not somebody is or is not a Zeta has 

absolutely nothing to do with whether or not they’re guilty, is that correct.” 

“[Witness]: “Correct.” 

Even assuming, without deciding, that the district court erred in 

admitting the challenged evidence, the error is harmless given other 

substantial evidence of Villalobos’s guilt, including multiple in-court 

identifications and testimony linking Villalobos’s conduct to the charged 

offenses. See United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008)

(finding no plain error where the district court allowed the admission of “guiltby-association” testimony because of strong evidence of defendant’s guilt). The 

admission of evidence as to Villalobos’s identity and his membership in the 

Zeta cartel was not reversible error.

IV.

Appellants’ final challenge is to the district court’s imposition of life 

sentences. Appellants argue that their life sentences are greater than 
No. 15-50407

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necessary to comply with the statutory purposes of sentencing under 18 U.S.C. 

§ 3553, especially in light of Appellants’ minimal criminal history. Where, as 

here, a defendant fails to object to his sentence during sentencing, we review 

the district court’s sentencing decision for plain error. See United States v. 

Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). We apply the same plain error 

standard of review when a defendant fails to object to the reasonableness of 

his sentence. Id. Plain error review is detailed supra in Section III.

We review sentences for procedural error and substantive 

reasonableness. See United States v. Bennett, 485 F. App’x 673, 675 (5th Cir. 

2012). Sentences must be sufficient but not greater than necessary to comply 

with § 3553(a). See Kimbrough v. United States, 552 U.S. 85, 91 (2007). When 

the district court imposes a sentence within a properly calculated guidelines 

range and gives proper weight to the Guidelines and the § 3553(a) factors, we 

“will give great deference to that sentence” and “will infer that the judge has 

considered all the factors for a fair sentence set forth in the Guidelines” in light 

of the sentencing considerations set out in § 3553(a). United States v. CamposMaldonado, 531 F.3d 337, 338 (5th Cir. 2008). “Appellate review for 

substantive reasonableness is highly deferential, because the sentencing court 

is in a better position to find facts and judge their import under the § 3553(a) 

factors with respect to a particular defendant.” Bennett, 485 F. App’x at 675 

(quoting United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011)).

At sentencing, the district court considered the § 3553(a) sentencing 

factors, the factual information in the PSR, and all other information privy to 

the court. The advisory Sentencing Guidelines as outlined in the PSR took 

Appellants’ lack of, or limited, criminal histories into account and nevertheless 

deemed life sentences appropriate. As we have previously held, a sentence 

imposed within the Guideline range is entitled to a rebuttable presumption of 
No. 15-50407

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reasonableness. See United States v. Wyss, 542 F. App’x 401, 408 (5th Cir. 

2013). Appellants can rebut the presumption “only upon a showing that the 

sentence does not account for a factor that should receive significant weight, 

gives significant weight to an irrelevant or improper factor, or represents a 

clear error of judgment in balancing sentence factors.” Id. The life sentences

imposed here, though long, were within the properly calculated Guideline 

range, which Appellants do not contest. Id. (quoting United States v. Alonzo, 

435 F.3d 551, 554 (5th Cir. 2006) (“If the sentencing judge exercises her 

discretion to impose a sentence within a properly calculated Guideline range, 

in our reasonableness review we will infer that the judge has considered all the 

factors for a fair sentence set forth in the Guidelines.”)). 

The district court justified Appellants’ sentences at the sentencing 

hearing through a discussion of the impact of the gun and drug trade on the 

numerous co-conspirators and their families that have become collateral 

damage. The district court’s reflection addressed the acute violence that Lugo

imposed on those who decided that they did not want to work for him. The 

district court found that Appellants presented no evidence rebutting the 

representations found in the PSR or the trial record, save for Villalobos’s 

counsel’s policy arguments regarding disparities in sentencing between 

Appellants and their co-conspirators, which bears little weight here. 

Accordingly, Appellants failed to rebut the presumption of reasonableness that 

applies here. See United States v. Romans, No. 13-40219, 2016 WL 2957797, 

at *7 (5th Cir. May 19, 2016) (affirming a within-Guidelines sentence 

notwithstanding the long length of time appellant would likely remain in 

prison); United States v. Alvarado, 691 F.3d 592, 597 (5th Cir. 2012) 

(concluding that appellant’s “mere belief that the mitigating factors presented 

for the court’s consideration should have been balanced differently is 
No. 15-50407

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insufficient to disturb this presumption”). The court need not vacate a life 

sentence merely because Appellants’ likely have many more years to live.2

Given the district court’s consideration of the § 3553(a) factors and the 

serious nature of both Villalobos’s and Lugo’s offenses, the district court’s 

imposition of life imprisonment sentences was substantively reasonable and 

free of error. 

V.

For the foregoing reasons, we AFFIRM.

 

2 Other circuits have dismissed similar arguments: 

[Appellant’s] emphasis on his ‘youth’ is simply misleading. He is . . . an 

adult able to understand the consequences of his actions. Although the 

indictment charged that the conspiracy began when [Appellant] was a 

teenager, [Appellant’s] criminal conduct occurred largely, if not entirely, 

during his adulthood. As for [Appellant’s] prowess as a boxer, the district court 

had no obligation to impose a lower sentence just so [Appellant] might pursue 

the boxing career he had already eschewed for a more lucrative life of crime. 

(We assume a much lower sentence would have been needed to allow 

[Appellant] to box outside prison while he is still young and healthy enough.) 

We sympathize with [Appellant’s] young son, who undoubtedly deserved a 

better chance to have a father play a meaningful role in his life. But the district 

court reasonably concluded that [Appellant’s] decision to pursue a life of crime 

showed his apparent disregard for his son’s welfare, as well as for the welfare 

of those who were harmed by the cocaine [Appellant] helped distribute, and 

justified adherence to the guideline recommendation of life imprisonment.

United States v. Tanner, 628 F.3d 890, 909 (7th Cir. 2010).